Double Jeopardy: Eleventh Circuit Decides Second Federal Criminal Indictment for Same Offenses Must Be Dismissed

Last week, the Eleventh Circuit Court of Appeals decided United States v. McIntosh, a federal criminal double jeopardy case. The Eleventh Circuit is located here in Atlanta and hears appeals in federal cases from Alabama, Florida, and Georgia. The Double Jeopardy Clause has been whittled down, but this case shows that there are still some circumstances in which the Eleventh Circuit recognizes its necessity.

In McIntosh, the defendant was indicted on drug and firearm charges and pleaded guilty to those charges. Before his sentencing, the prosecutor realized that the offense date in the original indictment was wrong, so he filed a second indictment, identical to the first, with the exception of only the corrected date, and a motion to dismiss the first indictment, which the court granted. McIntosh moved to dismiss the second indictment as barred by the Double Jeopardy Clause, but the court denied the motion. McIntosh then conditionally pleaded guilty to the second indictment, reserving his right to challenge the denial of his motion to dismiss.

The Eleventh Circuit held that jeopardy attached when McIntosh pleaded guilty to the first indictment, so the later indictment for the same offenses violated the Double Jeopardy Clause. The Court vacated his (second) conviction and remanded to the district court with instructions to dismiss the second indictment.

It wasn’t all victory for the defense, though. In its opinion, the Court discussed that the flaw in the original indictment was not fatal, but, at most, procedural. The district court had concluded that the dismissal of that indictment “effectively withdrew McIntosh’s guilty plea,” but the Eleventh Circuit pointed out that the district court had not vacated the conviction or set aside the guilty plea, so the “conviction still exists and awaits a sentence.”